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Robert Alvin Woolever, Jr v. Darrel Adams*Fn1

March 7, 2011

ROBERT ALVIN WOOLEVER, JR., PETITIONER,
v.
DARREL ADAMS*FN1 ,
RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is respondent's motion to dismiss four of the six claims set forth in the petition as barred by the applicable statute of limitations because they fail to relate back to the timely presented claims in the original petition filed in this action. Petitioner has not filed an opposition to the motion.*fn2

BACKGROUND

In 2006, petitioner was convicted of inflicting corporal injury on a cohabitant, making criminal threats, stalking, and damaging a phone line. (Resp't Lodged Doc. ("Lod. Doc.") No. 4, Opinion of Cal. Ct. of Appeal, at 1.) The trial court found a prior domestic violence enhancement allegation and a prior serious felony allegation brought pursuant to California Penal Code § 677.5(b) to be true. (Id.) Petitioner was sentenced to an aggregate prison term of 22 years. (Id. at 2.)

Petitioner filed an appeal with the California Court of Appeal for the Third Appellate District. (Lod. Doc. No. 1, Opening Brief.) On May 13, 2008, the California Court of Appeal issued its ruling, concluding that the one-year sentencing enhancement under California Penal Code § 677.5(b) should be stricken but in all other respects affirming the judgment of conviction. (Lod. Doc. No. 4. at 16-17.)

On June 6, 2008, petitioner's appointed counsel filed a petition for review with the California Supreme Court. (Lod. Doc. No. 5, Petition for Review, at 1.) On July 16, 2008, the court denied the petition. (Lod. Doc. No. 6, Order of California Supreme Court, at 1.)

On January 3, 2009, petitioner mailed his federal habeas petition to the United States District Court for the Eastern District of California, Fresno Division.*fn3 (Court Doc. No. 1 at 38.)

Petitioner provided four grounds for relief in his federal habeas petition: Ground One: The trial court erred in admitting the testimony of Angela Riel about prior acts of domestic violence (U.S. Const. Amends 5 and 14) Ground Two: The trial court erred as a matter of law when it admitted Evid. Code sec 1109*fn4 evidence on the stalking charge (U.S. Const. Amend 5, 14)

Ground Three: The trial court erred when it denied the defense motion to run sentence concurrent [sic] on Counts 4 and 5. Ground Four: If there is any evidence to support a finding of a threat that supports Count 4 apart from Count 5 [sic] (U.S. Const. Amends 5, 6 [sic]) (Id. at 4-5.) On January 14, 2009, the federal habeas action was transferred to this court.*fn5

On February 3, 2009, the court ordered respondent to file a response and for petitioner to file an appropriate reply. (Doc. No.5.)

On February 13, 2009, petitioner filed a motion for a stay and abeyance. (Doc. No. 9.) On April 9, 2009, the motion was denied without prejudice and petitioner was ordered to file a new motion within thirty days and to provide information in support of his motion as required by Rhines v. Weber, 544 U.S. 269 (2005). (Doc. No. 13.) On June 9, 2009, the court granted petitioner's request for an extension of time to file his motion for stay and abeyance. (Doc. No. 16.)

On June 26, 2009, petitioner mailed a petition for a writ of habeas corpus to the California Supreme Court. (Lod. Doc. No. 7, Calif. Supreme Court Habeas Petition.)

On July 6, 2009, petitioner filed his new motion for a stay and abeyance. (Doc. No. 17.) Respondent filed an opposition to the motion. (Doc. No. 18.) Before the court could rule on that motion, petitioner filed a motion for leave to file an amended federal habeas petition and informed this court that on November 19, 2009, the California Supreme Court had denied his state habeas petition. (Doc. No. 20; Lod. Doc. No. 8.) On March 15, 2010, the court denied the motion for a stay and abeyance as moot and granted petitioner's motion for leave to file an amended petition. (Doc. No. 22 at 1-2.)

Petitioner's amended federal habeas petition was mailed on April 9, 2010. (Doc. No. 23.) That amended petition ...


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